Graveyard - Definition - Law Dictionary Home Dictionary Definition graveyard

Definition :

Graveyard, Under the Mahomedan Law the graveyards may be of two kinds - a family or private graveyard and a public graveyard. A graveyard is a private one which is confined only to burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to be bury to his dead. On the other hand if any member of the public is permitted to be buried in a graveyard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the graveyard has become a public graveyard where the Mahomedan public will have the right to bury their dead. It is also well settled that a conclusive proof of the public graveyard is the description of the burial ground in the revenue records as a public graveyard, Syed Mohd. Salie Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 (1584): (1976) 4 SCC 780: (1976) 3 SCR 721.

Once a Kabaristan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not. The following rules in order to determine whether a graveyard is a public or a private one may be stated:

(1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;

(2) that if the graveyard is a private or a family graveyard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard;

(3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the court will presume that the graveyard is a public one, and

(4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard, Syed Mohd. Salie Labbai v. Mohd. Hanifa, AIR 1976 SC 1569: (1976) 4 SCC 780: (1976) 3 SCR 721.